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INDEX

OF THE

PRINCIPAL MATTERS.

AGENT.

See COMMERCIAL LAW.
1. Where the United States and the Cherokee nation agreed that the latter should

emigrate across the Mississippi, and the former pay the expenses thereof,
and the Cherokees undertook to conduct the movement entirely by their own
agents, a person whose wagons had been hired could not hold the agent who
had hired them personally responsible. The owner of the wagons knew that

the agent was a public officer, and dealt with him as such. Parks v. Ross, 362.
2. Wherever a contract or engagement, made by a public officer, is connected with

a subject fairly within the scope of his authority, it shall be considered to have
been made officially and in his public character, unless the contrary appears
by satisfactory evidence of an absolute and unqualified engagement to be per.

sonally liable. Ibid.
APPEALS.
Where a case is brought up by an appeal from a judgment on the common law

side of the Circuit Court, instead of by a writ of error, it must be dismissed.

Bevins et al. v. Ramsay et al., 185.
ATTORNEY.
Under what circumstances an attorney is not at liberty to purchase a judgment

which he himself has been the agent to recover, see Stockton v. Ford, 232.
BANKRUPTCY.
1. A decrce in bankruptcy, passed, in 1843, by the District Court of the United

States for the Eastern District of Louisiana, did not pass to the assignee the
title to a house and lot in the city of Galveston and State of Texas, which

house and lot were the property of the bankrupt. Oakey v. Bennett, 33.
2. Texas was then a foreign State, and wliatever difference of opinion there may

be with respect to the extra-territorial operation of a bankrupt law upon per-
sonal property, there is none as to its operation upon real cstate. This court
concurs with Sir William Grant, in 14 Vesey, 537, that the validity of every
disposition of real estate must depend upon the law of the country in which

that estate is situated. Ibid.
3. Besides, the deed made by the assignee in bankruptcy to one of the partics in

the present cause was not made conformably with the laws of Texas; and
letters of administration upon the estate of the bankrupt had been taken out
in Texas before the fact of the bankruptcy was known there; and the credit.
ors of the estate in Texas had a better lien upon the property than the assignee

in Louisiana. Ivid.
BILLS OF EXCHANGE AND PROMISSORY NOTES.

See COMMERCIAL LAW.
CHANCERY.
1. Where a deed was executed by an aged woman, the sole surviving executrix

of her father, with power under the will to sell, with a view to put an end to
a long family litigation in which some judgments had been obtained, and other
suits were then existing, and who owned the whole or nearly the whole of the
residuary interest of the estate ; and the settlement was made with delibera-
tion, and under advice of business friends, and the corsideration of the deed

131.

CHANCERY (Continued).

was a sum of money in hand, with a stipulation on the part of the grantee,
that he would pay over any surplus which the lands might yield after paying
all reasonable expenses and legal claims, -- this deed cannot be set aside on

the ground of fraud. Gratz's Executors et al. v. Cohen et al., 1.
2. The bill below must be dismissed, unless it be so amended as to include all the

parties interested, and be confined to a claim for the surplus of the proceeds

of the lands, after paying reasonable expenses and legal claims. Ibid.
3. Where a bill in chancery alleges that certain lands were entered in the name

of a third person, with a view to cover them from the creditors of the person
who had entered them, and this allegation is denied in the answer and not

sustained by proof, the bill pro tanto must be dismissed. McCoy v. Rhodes,
4. But where the party entered the lands in his own name, and afterwards con-

veyed them to this third person, but the deed to the third person was not re-
corded until after a judgment had been obtained by a creditor, and recorded
in the parish where the land lies, against the party who made the entry, it
will not be sufficient merely to set up in the answer that this third person
furnished the money with which to purchase the lands. The equity must be

proved. Ibid.
5. By the laws of Louisiana, no notarial act concerning immovable property has

effect against third persons until it shall have been recorded in the office of
the judge of the parish where such property is situated. Therefore, whero
there was a judgment against the holder of the legal title, rendered in the in-
termediate time between the execution of a deed and its being recorded, and
the judgment was first recorded, the subsequent recording of the deed could

not abrogate the licn of the judgment. Ibid.
6. The forty-seventh and forty-eighth rules of chancery practice explained. Ibid.
7. Under what circumstances a court of equity will hold a purchase from a factor

responsible to the principal, see Warner v. Martin, 209.
8. The Constitution of the United States has recognized the distinction between

law and equity; and it must be observed in the federal courts, although
there is no distinction between them by the laws of a State. Bennett v. But

terworth, 669.
9. Where the record does not show that the case was conducted as a chancery case,

it cannot be treated as such.
COLLECTORS OF CUSTOMS.
1. Where a collector received treasury-notes in payment for duties, which were

cancelled by him, but afterwards stolen or lost, altered, and then received by
him again in payment for other duties, he is responsible to the government

for the amount thereof. United States v. Morgan, 154.
2. So also he is responsible, to a certain extent, where treasury-notes were received

by him in payment for duties, cancelled, but lost or purloined (without his
knowledge or consent), before being placed in the post-office to be returned to

the Department. Ibid.
3. And this is so, whether the notes be considered as money or only evidences of

debt by the Treasury Department. Ibid.
4. But the extent, above mentioned, to wbich his responsibility goes is to be meas-

ured by a jury, who are to form their judgment from the danger of the notes
getting into circulation again, the delay and inconvenience in obtaining the
proper vouchers to settle accounts, the want of evidence at the Department
ihai the notes had been redeemed, or from any other direct consequence of

the breach of the collector's bond. Ibid.
COMMERCIAL LAW.
1. Where a bill of exchange had upon it the forged indorsement of the payees, but

it had been put into circulation by the drawers with such forged indorsement
already upon it, and it was purchased in the market by a bona fide holder, who
presented it to the drawee, who accepted and paid it at maturity, and then the
drawers failed, the drawee cannot recover back the money which he had paid

to the bona fide holder. Hortsman v. Henshaw, 177.
2. Where a merchant, in order to secure himself from loss, took merchandise from

a factor, with a knowledge that the factor was about to fail, the principal who
consigned that merchandise to the factor may avoid the sale, and reclaim his
goods, or hold the merchant accountablc for them. Warner v. Martin, 209.

COMMERCIAL LAW (Continued).
3. And where the purchase was made from the factor's clerk, who had been left

by the factor in charge of the business, this was an additional reason for avoid-
ing the sale ; because a factor cannot delegate his authority without the assent

of the principal. Ibid.
4. A factor or agent, who has power to sell the produce of his principal, has no

power to affect the property by tortiously pledging it as a security or satisfac-
tion for a debt of his own, and it is of no consequence that the pledgee is
ignorant of the factor's not being the owner. But if the factor has a lien

upon the goods he may pledge them to the amount of his lien. Ibid.
5. Under any of these irregular transfers, a court of equity will compel the holder

to give an account of the property which he holds. Ibid.
6. Nor can a factor sell the merchandise of his principal to a creditor of the factor
: in payment of an antecedent debt. Such a transfer is not a sale in the legal

acceptation of that term. Ibid.
7. The power of a factor explained. Toid.
8. These principles of the common law are sustained by a statute of the State of

New York passed in April, 1830 (3 Revised Laws, Appendix, p. 111). Ibid.
CONFLICT OF LAWS.
1. A decree in ankruptcy, passed by the District Court of the United States for

the Eastern District of Louisiana, did not pass to the assignee the title to a
house and lot in the city of Galveston and State of Texas, which house and

lot were the property of the bankrapt. Oakey v. Bennett, 33.
2. Texas was then a foreign State, and a bankrupt law can have no extra-territo-

rial operation upon real estate. Ibid.
3. Besides, the deed made by the assignee in bankruptcy to the claimant was not

made conformably with the laws of Texas; and letters of administration
opon the estate of the bankrupt had been taken out in Texas before the fact
of the bankruptcy was known there ; and the creditors of the estate in Texas
had a better lien upon the property than the assignee in Louisiana. Ibid.
By the laws of Louisiana, no notarial act concerning immovable property has
effect against third persons, until it shall have been recorded in the office of
the judge of the parish where such property is situated. Therefore, where
there was a judgment against the holder of the legal title, rendered in the in-
termediate time between the execution of a deed and its being recorded, and
the judgment was first recorded, the subsequent recording of the deed could

not abrogate the lien of the judgment. Mc Coy v. Rhodes, 131.
CONSTITUTIONAL LAW.
1. A statute of the State of New York provides, that, where joint debtors are sued

and one is brought into court on process, if judgment shall pass for plaintiff,
he shall have judgment and execution not only against the party brought
into court, but also against other joint debtors named in the original process,
in the same manner as if they had all been taken and brought into court by
virtue of such process; but it shall not be lawful to issue or execute any such
execution against the body or against the sole property of any person not

brought into court. D'Arcy v. Ketchum, 165.
2. Where a judgment was given in New York against two partners, one of whom

resided in Louisiana and was never served with process, and an action was
brought against him in Louisiana upon this judgment, a peremptory excep-
tion, in the nature of a demurrer, that "the judgment sued upon is not one
upon which suit can be brought against the defendant in this court," was well

founded. Ibid.,
3. Congress did not intend, by the act of 1790, to declare that a judgment ren.

dered in one State against the person of a citizen of another, who had not
been served with process or voluntarily made defence, should have such faith
and credit in every other State as it had in the courts of the State in which it

was rendered. Ibid.
4. Before the admission of Texas into the Union, that State passed many laws

upon the subject of head rights to land, the general object of which was to
ascertain and secure valid titles, and prevent frauds, by acts of limitation and
by the establishment of boards of commissioners to separate the bad from the

good titles. League v. De Young et al., 185.
5. In the constitution adopted just before her admission into the Union, there was

an article annulling fraudulent certificates, and opening the courts, up to &
certain day, to suitors for the investigation of their claims. Ibid.

CONSTITUTIONAL LAW (Continued).
6. It was perfectly competent for the people of Texas to pass these laws and adopt

this constitution. Toid.
7. Moreover, they were all passed before the Constitution of the United States had

any operation over Texas, and cannot therefore be in conflict with any of its

provisions. Ibid.
8. The legislature of the Territory of Iowa passed a law directing a court to de-

cide matters of fact without the intervention of a jury. This was inconsistent

with the Constitution of the United States. Webster v. Reid, 437.
DEEDS.

When set aside. See CHANCERY.
DEMURRER TO EVIDENCE.

See EVIDENCE.
ESTATES TAIL.
1. In 1786 the legislature of New York passed a law declaring that “all estates

tail shall be, and hereby are, abolished”; and if any person should thereafter
become seized in fee tail of any lands, tenements, or hereditaments by virtue
of any devise, &c., he should be deemed to have become seized in fee simple

absolute. Van Rensselaer v. Kearney, 297.
2. This included an estate tail in remainder, as well as one in possession. The

courts in New York have so decided, and this court adopts their construction.

Ibid.
3. The remainder-man dying during the lifetime of the life tenant, the latter, being

the father, inherited from the son a fee simple absolute. Ibid.
4. Whilst the remainder-man was yet alive, the life tenant sold the property and

conveyed it to the vendee by a deed which, according to its true construction,
affirmed the existence of an estate in fee simple in itself. The reasons for this

construction stated. Ibid.
5. Those claiming under him are estopped by this decd. The doctrine of estop-

pel explained. Ibid.
ESTOPPEL.

The doctrine of estoppel explained. Van Rensselaer v. Kearney, 297.
EVIDENCE.
1. How far the acts of a feme covert amount to an acknowledgment of the con-

struction of the will of her ancestor, see Weatherhead's Lessee v. Baskerville,

329.
2. Where a will contained the following expressions, viz. “my estate to be equal.

ly divided among my children,” and also, “my lands and slaves to be equally
divided amongst my children"; and had in it also the following clause : "to
each of my daughters a small tract of land," — the last clause must be rejected
as void and inoperative, and cannot be used for the purpose of showing such
an ambiguity as would let in extrinsic testimony to explain the intentions of

the testator. Ibid.
3. When such testimony is introduced, it must be of facts unconnected with any

general declaration or wishes expressed by a testator for the disposition of his

property. Ibid.
4. How far acquiescence by a feme covert is evidence of recognition of a construc-

tion of a will. Ibid.
5. A legal partition cannot be presumed, where such partition is, by law, a matter

of record. Ibid.
6. The doctrine of presumption as to records explained. Ibid.
7. In some of the States it is thc practice, after the evidence for the plaintiff is

closed, for the defendant to pray the court to instruct the jury that there is
no evidence upon which they can find a verdict for the plaintiff. Parks v.

Ross, 362.
8. This is equivalent to a demurrer to the evidence, and such an instruction onght

to be given whenever the evidence is not legally sufficient to serve as a foun.

dation of a verdict for the plaintiff. Ibid.
9. The act of Congress passed on the 24th of September, 1789 (1 Stat. at Large,

88, 89), provides that ex parle depositions may be taken before a judge of a

County Court. Fowler v. Merrill, 375.
10. Where a Probate Court is organized for each county in a State, is a court of

record, and has a seal, it is sufficient if a deposition under that act be taken
before a judge of the Probate Court. Ibid.

[graphic]

EVIDENCE (Continued.)
11. A deed made by an officer authorized to sell for taxes, when it shows upon its

face that the officer exceeded his authotity, is not admissible in evidence.

Moore v. Brown, 414.
12. Where a contractor engaged to build a house for a certain sum of money, and

the owner of the house, when sued, offered to prove that there were various
omissions in the work stipulated to be done, and portions of the work were
done in a defective manner, not being as well done as contracted fur, and filed
a bill of particulars of these omissions and defects by way of set-off, this evi.

dence was admissible. Van Buren v. Digges, 461.
13. The old rule, that, where a party shall have been injured, either by a partial

failure of consideration for the contract, or by the non-fulfilment of the con-
tract, or by breach of warranty, he must be driven to a cross action, has been
much relaxed in later times. The case of Withers v. Greene (9 Howard,

213) referred to and reaffirmed. Ibid.
14. Where the contract provided that, if the house were not finished by a certain

day, a deduction of ten per cent. from the price should be made, and the
defendant offered evidence to prove that this forfeiture was intended by the
parties as liquidated damages, the evidence was properly rejected. It would
have been irregular in the court to go out of the terms of the contract. Un-
less the forfeiture had been expressly adopted by the parties as the measure
of injury or compensation, it would have been irregular to receive the evi.
dence where the inquiry was into the essential justice and fairness of the acts

of the parties. Ibid.
15. Where the defendant offered to prove that certain work which he, the defend.

ant, had caused to be done by a third person, was usual and proper, and
necessary to the completion of the house, this evidence was properly rejected.
He should have proved that it came within the contract. So, also, evidence
was inadmissible that the defendant, in presence of the plaintiff, insisted upon
its being within the contract; for this would have been making the defendant

the judge in his own case. Ibid.
16. Mere acquiescence by the contractor in the defendant's causing certain work

to be done by a third person, will not exclude the contractor from the benefit
of having further time allowed to finish the house. It was not necessary for
him to make a special agreement that further time should be allowed, in

conscquence of the delay caused by this extra work. Ibid.
17. Where a witness was examined for the plaintiff, and the defendant offered in

evidence declarations which he had made of a contradictory character, and
then the plaintitt offered to give in evidence others, affirmatory of the first,
these last affirmatory declarations were not admissible, being made at a time
posterior to that at which he made the contradictory declarations given in

evidence by the defendant. Conrad v. Griffey, 480.
FACTOR.

See COMMERCIAL LAW.
FEME COVERT.

See WILLS.
JUDGMENT.
1. A statute of the State of New York provides, that, where joint debtors are sued

and one is brought into court on process, if judgment shall pass for plaintiff,
he shall have judgment and execution not only against the party brought into
court, but also against other joint debtors named in the original process, in
the same manner as if they had all been taken and brought into court by
virtue of such process; but it shall net be lawful to issue or execute any such
execution against the body or against the sole property of any person not

brought into court. D'Arcy v. Ketchum, 165.
2. Where a judgment was given in New York against two partners, one of whom

resided in Louisiana and was never served with process, and an action was
brought against him in Louisiana upon this judgment, a peremptory excep-
tion, in the nature of a demurrer, " that the judgment sued upon is not one
upon which sait can be brought against the defendant in this court," was well

founded. Ibid.
3. Congress did not intend, by the act of 1790, to declare that a judgment rendered

in one State against the person of a citizen of another, who had not been
served with process, or voluntarily made defence, should have such faith and

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